What happens if you are falsely accused of sexual assault?

What happens if you are falsely accused of sexual assault?

No one wants to be unfairly accused of any crime but the negative stigma attached to sexual assault charges can easily destroy reputations while tearing apart families and livelihoods. Those caught in this situation are consumed with fear and anger as they face a daunting legal process that can drag on for years, with no guarantee of vindication.

Crimes of sexual violence have received enormous attention in the last decade, with movements such as #metoo and #timesup shining a spotlight on misogyny and sexual abuse.

If you are charged with this crime but feel you have done nothing wrong, your first inclination might be to drive to the police station and try to clear up the matter as quickly as possible. But that may not be the best course of action or what serves your long-term interests.

Instead stay calm and take these steps to help clear your name.

Seek the proper legal assistance

Those charged with sexual assault need to enlist the aid of an experienced criminal defence lawyer to represent them with compassion and courage. The Crown considers sexual assault one of the worst types of offences, making the chances of a self-represented litigant beating the charges very slim.

Find a criminal defence lawyer who has experience in this area of law and book a consultation – usually offered for free – to see if you “click.” Being charged with sexual assault is a serious matter and can take months to resolve, so it’s essential to feel a rapport with the person who will be defending you.

While no two sexual assault allegations are alike, an experienced lawyer can help you prepare for the trial that is probably more than a year away. Evidence and procedural rules for sexual assault cases are very complicated, which is why it is vital to have a seasoned legal advocate to present your case clearly and concisely.

Write everything down

When meeting clients facing sexual assault charges, the first thing I advise is write down every detail they remember related to the charge. I specifically caution them not to “edit” details they don’t feel are relevant or useful to the case, as in many instances something my client doesn’t see as useful ends up being a critical piece of information in their defence.

Since we live in the age of social media, it is essential to gather all texts and messages exchanged between the complainant and the accused. Take photos or screen grabs of every exchange that is relevant and don’t just trust that you will be able to find it later on an electronic device. Give all this information to the lawyer, plus anything else you may have that addresses what has allegedly happened, including information about possible motives for laying these charges.

This information helps paint a narrative of what happened so your lawyer has a clear picture of exactly what’s transpired as well as the timeline.

Gather any available evidence

While text messages and video footage are sometimes introduced as evidence in sexual assault cases, in most cases the court has to rely solely on the testimony of the accused and the defendant when weighing a verdict.

Physical evidence such as DNA or the presence of semen can be a valuable form of evidence in some cases but not in all. For example, if a woman says she was raped but the man says the sex was consensual, the presence of semen is of no help in determining if sex was a voluntary act.

In most sexual assault cases the two sides will present starkly different versions about what happened.

When I am involved in these “he says/she says” cases, my ability to establish your innocence rests almost entirely on showing that your word is to be trusted. Through cross-examination, I try to find gaps or contradictions in the other side’s testimony, raising questions about their credibility in the eyes of the court. I can also enter evidence that can show that the alleged offence was improbable or impossible, or that the complainant’s allegations are too inconsistent or incompatible with reality to be true.

There are many rules legal counsel have to abide by when questioning the complainant in court, such as what are commonly known as “rape shield laws.” In the 1980s, new provisions under s.276 of the Criminal Code banned the admission of prior sexual history evidence in cases where it went to support the “twin myths” (the idea that complainants with a prior sexual history are more likely to have consented and are less worthy of belief).

While these changes restricted the admissibility of evidence of the complainant’s sexual history, judges were left with significant discretion, leading to the new rules being applied unevenly across Canada. This inconsistency is another reason to have competent legal counsel at your side during a trial.

The accused is still presumed innocent

While it can be hoped that charges of sexual assault would only be laid when the evidence warrants it, the public record shows that is not the case. National policing data compiled by The Globe and Mail in 2017 revealed that one of every five sexual assault allegations in Canada is dismissed as baseless.

Judges have also recognized the danger posed by the public’s embrace of movements such as #believethevictim. In the 2017 case R. v. Nyznik, Justice Anne Malloy stated in paragraph 17: “Although the slogan ‘Believe the victim’ has become popularized of late, it has no place in a criminal trial. To approach a trial with the assumption that the complainant is telling the truth is the equivalent of imposing a presumption of guilt on the person accused of sexual assault and then placing a burden on him to prove his innocence. That is antithetical to the fundamental principles of justice enshrined in our constitution and the values underlying our free and democratic society.”

Earlier in the judgment Justice Malloy noted the presumption of innocence is the bedrock on which our justice system is built, operating as a shield between the individual and the overwhelming power of the state.

“The presumption of innocence, and along with it the standard of proof beyond a reasonable doubt, are important safeguards to ensure that no innocent person is convicted of an offence and deprived of his liberty,” she wrote.

“Without these protections, there would be a serious risk of wrongful convictions – an outcome that cannot be accepted in a free and democratic society … even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt.”

Professionals who are most likely to be falsely accused of sexual assault

Canada has seen many high-profile sexual assault cases in the past decade, including a former CBC Radio host and priests who allegedly sexually assaulted minors in their care. Those in a position of authority need to be vigilant as they sometimes are easy targets of false sexual abuse allegations.

Doctors, for example, frequently require patients to remove their clothing for examinations. To ward off any chance that a patient will claim there was unwanted sexual touching during this process, some medical professionals ensure a nurse or medical assistant is present in the room at the time to provide eyewitness testimony should a false sexual assault charge be launched. Hospital doctors also undergo training so they know what might constitute unwanted sexual touching and how to avoid such situations.

People who visit a dentist often are sedated during a procedure and may think they were improperly touched as they recover from the fog of anesthesia or gas. Again, having another person in the room at all times should protect the dentist from false allegations.

Similarly, teachers, clergy or anyone else who deals with the young should always make sure they are not left alone with a child, who could later allege improper touching. Surveillance cameras and policies that forbid private meetings with students after school or behind closed doors are ways around that.

Consequences of being convicted

The media pays special attention to sexual assault cases and disseminates the name of those convicted, cementing the damage to their reputations. Conviction is usually followed by jail time, a criminal record, social stigma and registration in the National Sex Offender Registry, with the ability to travel internationally also hindered.

The law gives judges some leeway in reaching a sentence, depending on the severity of the crime.

Possible punishments include:

• Up to 10 years in prison
• Up to three years of probation
• Inclusion in the National Sex Offender Registry
• Surrender of a DNA sample to the National DNA databank
• Inability to possess or have weapons (including firearms)
• Inability to attend public park or pools, schoolyards, playgrounds, or any other place where children under 16 can be expected to be (if the victim is under 14)

Those falsely accused of sexual assault should not be expected to bear such a burden, which is why it is essential they seek out a skilled and experienced legal advocate.

How can I help you?

Facing allegations of sexual assault can devastate your career and community standing and could even lead to imprisonment if you're convicted. As a sexual assault lawyer in Ottawa, I stand ready to build your defence. If under investigation or charged, contact me before speaking with the police. One of the outlined defences could apply to you, or we can tailor a strategy to your case. Reach out to me at 613.863.8595 for a free consultation.